Lord Lester of Herne Hill: My Lords, I am grateful to the noble Lord for giving way. The Question does not in any way impugn the capacity of the noble Lord, Lord Kirkhill, whom I am glad to see in the Chamber, nor of the committee. The question is whether the committee adequately went about its job of obtaining the information and of informing the assembly of what appears to be an extraordinary decision to disqualify in its recommendation Mr. Bratza and qualify the third candidate without giving any reasons for that or even informing the assembly of what it was doing.

Lord Hardy of Wath: My Lords, I think the noble Lord may have overlooked the fact that the sub-committee in approaching the problem of electing judges from all the member states compiled a proper structure of CVs. It was equipped with the available information. My noble friend Lord Grenfell is absolutely right, in that the Council of Europe parliamentary assembly should be cognizant of the national view but it cannot, and must not be, a rubber stamp for the administration.

I shall give the House two illustrations of why I viewed governments with some suspicion. First, the Council of Europe organised a conference in Lisbon on North/South matters. I moved an amendment which sought to be specific in securing commitment from member states, only to find that the Norwegian Conservative delegation complained to me that a diplomat employed by the British Foreign Office had entered the conference and was seeking to buttonhole members of parliament from other countries on behalf of Her Majesty's Government; that he had no business to be there; and that the Foreign Office had no right to authorise that behaviour.

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However, the second incident was more serious. I was involved in debates at the time when the convention against torture surfaced. A member of our delegation who put an awful lot of effort into that matter was Dr. Maurice Miller. He was a practising doctor. He was also a Member of Parliament. He took a refresher course every year and treated a number of Members of Parliament, and perhaps some Members of your Lordships' House. He was up-to-date in medical practice. He had been a Justice of the Peace during his long service on Glasgow corporation.

He retired in 1987 after playing a key role in implementing the convention against torture. As regards the appointment of the committee to supervise the convention against torture, there was no one more suitable to serve on it within the European political field than Dr. Maurice Miller. However, the Foreign Office--I believe at the instigation of No. 10--did not want Maurice Miller. It wanted to appoint someone who had been a Conservative Member of Parliament but had been defeated at the previous election. He had been an enthusiast for hanging and flogging. I ask the House whether it was sane for the Foreign Office to propose an enthusiast for hanging and flogging to be Britain's representative on the convention against torture.

Noble Lords will understand why people in the parliamentary assembly were not--and indeed must not be--merely the pawns of a foreign office or of a government. I am delighted that the present Government have changed the arrangement, as it needed to be changed. It has needed to be changed for 20 or 30 years. This House should be grateful to the noble Lord, Lord Kirkhill, for the efforts he has made to ensure that the system is now a great deal better than it ever was in the past.

7.44 p.m.

Lord Wilberforce: My Lords, like other noble Lords who have spoken I express appreciation of the action of the noble Lord, Lord Lester of Herne Hill, in bringing this matter before this House for discussion. It is a matter of extreme importance in relation to this particular appointment, which was one of great significance as the first appointment to the new court. I refer to the appointment of an eminently qualified person from the commission which is likely to set a precedent for other cases in the future, and is one in which the results happily came out right but might easily not have done. That could have led to disaster.

The system of nominating more than one person--two or three persons--for election to a judicial appointment is quite a common one. I believe it is right to look at this case in the context of what generally happens in other areas. Of course a system of that kind--submitting three names and then expecting one to be appointed--can only work satisfactorily given two things: first, that the electing body which does the actual election has proper information, competence and good sense to enable it to make a choice; and, secondly, that the nomination process is carried out carefully and conscientiously and is submitted as it should be to the

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electing body. Of course these two considerations are closely interlinked because the stronger the nomination process, and the better that is carried out and is seen to be carried out, the more likely and appropriate that the electing body will bring itself into line and accept the nomination of the nominating committee.

For some time I have been on both sides of this process. I hope noble Lords will allow me to recount a little of my experience on this. I have been involved in the nominating process for the International Court of Justice at the Hague. There, as your Lordships know--certainly the noble and learned Lord will know this--there is an elaborate process by which the nomination of judges (not only the British judge but also other judges) is made by the national group of the permanent court of arbitration at the Hague. I have been a member of that permanent court for a great many years and have considered a great number of nominations for judges, both British judges and other judges. In every case--which is completely in accordance with Article 6 of the charter which requires consultation to take place everywhere--we have been to a great deal of trouble to find out who was the best candidate. We met. We did not interview but we considered the CVs and gathered evidence. We made our nomination in due course. In no case was our nomination of a British judge ever doubted.

It is important to remember that the actual election is carried out by a body even more democratic--if I may say so--than the Parliamentary Assembly of the Council of Europe. The election is made by the United Nations General Assembly and Security Council. One could not have a more democratic body than that. Given that process, the nomination of the national candidate is invariably accepted.

Another example is the European Court of Justice. As your Lordships know, judges there are appointed by common accord of the governments. In practice, by the common accord of the governments, the nomination of those governments is always respected. So much for the nomination side. I believe that this process works well, and can work well, given the two considerations which I have mentioned.

On the passive side, I have been nominated more than once, with others, for the European Court of Human Rights. I have been on the list, sometimes in one place, sometimes in another. I know that the noble Lord, Lord Hardy, does not approve of the way in which the list was drawn up. It was done no doubt after consultation; names were presented. If my name was not the first, I should be absolutely horrified at the idea of being subjected to scrutiny by the Parliamentary Assembly and summoned for interview. Had that been the situation at that time, I and others would never have allowed our names to go forward. That was the process. Three names were submitted, and in my experience the first name was almost invariably accepted by the Parliamentary Assembly.

However, there is the interest of the Parliamentary Assembly. It is a democratic body. Three names are submitted. It has the power, and probably in some cases the duty, to scrutinise those who come before it. It is a

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very large body. All sorts of names may come up, possibly of people who have no experience at all in the field of human rights. It is appropriate that the Parliamentary Assembly should examine the names.

However, I humbly urge the Government not to go too far in the direction of accepting some new process by which interviews are to take place and liberty is to be taken to vary the list of national nominations. Given that the national nomination is properly carried out--as it was in this case; the noble and learned Lord took every trouble to get the best possible authority and the best possible names were submitted--and given the communication of that process to the Parliamentary Assembly, which is essential, and the reasons why they were chosen and by whom--then I firmly believe that the best process is that, in principle, the first name should be selected and the nomination process of the nominating state should be respected. I hope that the Government will continue to urge that. I am entirely in agreement with the proposal of the noble and learned Lord. We are grateful to him for having submitted it.

I wish to make just one comment in passing. I am not a great lover of interviews. I do not believe that they are the right way to select people for jobs, especially very high grade people of the kind that we are considering. However, if a parliamentary secretary wishes to have interviews, let them be proper interviews. To that extent I agree with the noble Lord. I should sooner be without interviews altogether. I am happy to endorse the proposal and hope that Her Majesty's Government will go along with it.

7.52 p.m.

Lord Ponsonby of Shulbrede: My Lords, I should first declare an interest. I, too, am a delegate to the Council of Europe and had a vote in the elections to which the debate refers.

All noble Lords have referred to the need for a balance to be struck between the proper selection of three eminent candidates, any one of whom could be selected, and the necessity that the assembly of the Council of Europe should not become a rubber stamp. A procedure should be established to prevent that happening.

The noble Lord, Lord Lester, made a number of accusations regarding the procedure. I am not extremely familiar with it; however, I think I can talk about some of the accusations that he made. He referred to the issue of qualifications. My noble friend Lord Grenfell dealt with that point. It was certainly the expectation of the legal sub-committee that all three candidates put forward by every country should be eminently qualified. That was certainly so in the case of the British judges who were proposed.

The noble Lord also raised the question of transparency. The assembly had the right to select from the three candidates as early as 1949, under Article 39, and under Article 22 of the new Convention of 1994. There is no debate about the right of the assembly to make the choice. The question relates to the particular time when that right was fully explored.

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The noble Lord questioned whether the procedure was thorough and fair. I have not heard any complaints from any other country as to its foulness or fairness. I have heard no accusations of political bias. I noted that the noble Lord was careful to phrase his accusation about partisanship and political manoeuvring in the abstract. I do not think that he was actually accusing my noble friend Lord Kirkhill of partisanship in any way.

The answer to the point about being thorough and fair came in the remarks of my noble friend Lord Grenfell about the sequencing of the decision-making process. He said that all the candidates put forward should be eminently suitable for the post.

The final point made by the noble Lord, Lord Lester, related to the independence and expertise of the committee. It is my understanding that there were a number of experts on the committee. As I said, I have heard no accusation of political bias other than in the now infamous article in The Times by David Pannick.